NFL Concussion Settlement Oral Argument

Just before the start of the regular season in 2013, thousands of former players first settled with the National Football League (NFL) over concussion-related suits. The league agreed to pay for medical benefits and injury compensation to retired players, as well as to fund medical exams, research and to pay litigation expenses. The lawsuits accused the league of hiding known risks of concussions and returning injured players to games. After that first deal was rejected by the trial court, a second deal doing away with a cap on the fund from which injured former players would draw was reached. Reportedly, the second settlement approved earlier this year could payout more than $1 billion. The lower court, however, kept out a class of players who had argued that they should benefit from the settlement because in the future they may develop the disease chronic traumatic encephalopathy (CTE). Failure to compensate players with CTE is the primary objection to the previously approved deal which only compensates for CTE if the player has died. Several players appealed to the United States Court of Appeals for the Third Circuit. Currently, CTE can be detected only by an autopsy of the brain, and the families of several former players who died and were found to have the condition stand to receive up to $4 million. Those awards apply only to players found before the settlement was approved last April. Apparently, appellate judges appeared skeptical during oral argument last week, noting that those conditions were widely prevalent in the general population and that players who developed the conditions would not necessarily have CTE. One judge on the panel even remarked that the settlement could be watered down by every depressed field-goal kicker. The case faced significant legal hurdles at the start that could have landed the case in arbitration instead of federal court. At the outset, the district judge signaled a preference for settlement of the case, believing that the interests of all parties would be best served by a negotiated resolution. The settlement was characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners claim they wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The appeals court noted that the settlement included a provision that obligates lawyers for the league and the retired players to have good-faith negotiations in the coming years to consider future science and other issues. The appellants’ lawyers argued that was inadequate because the NFL maintains veto power over any settlement amendments. See more here-- http://nyti.ms/1MYEIHZ

NFL - Brady Settlement Not Looking Good

As the New England Patriots begin training camp, there is no certainty about whether Tom Brady will be available for game one of their NFL season. While there have been reports regarding a possible settlement for Brady’s appeal of his four-game suspension, with leaks that he is seeking either a complete exoneration or only a fine, others say he may be willing to accept a reduced suspension. It is unlikely that Brady would agree to miss games without taking the case to court to avoid admitting any guilt. They say a fine could be interpreted as putting the so-called Deflategate distraction behind his team. But now, the NFL could reject Tom Brady’s appeal and uphold the four‐game suspension. The NFL claims the quarterback's actions were detrimental to the integrity of the sport. ESPN today reported Commissioner Roger Goodell will not reduce or overturn Brady’s suspension and that Brady may have actually destroyed his own personal cell phone rather than just refusing to turn it over. The NFL was annoyed Brady would not give up relevant text messages and emails that might help clarify his level of involvement in Patriots equipment managers allegedly letting air out of game balls. Now it appears that electronic evidence may have been spoliated. Still, NFL Media's National Insider reports that the NFL and NFL Players Association exchanged offers for a potential settlement on Brady's suspension, according to sources informed of the negotiations. See stories here-- http://bit.ly/1Jq4HuT and http://bit.ly/1fEbJ39 and http://www.nfl.com/news/story/0ap3000000504228/article/nfl-nflpa-exchange-offers-on-brady-settlement

Armstrong Seeks To Vacate Arbitration Award

When cyclist Lance Armstrong finally confessed doping to Oprah Winfrey in 2013, the Dallas sports insurance company that paid him millions of dollars in victory bonuses sued for fraud, asking for its money back. After SCA accused Armstrong and filed suit which was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. The dispute with Armstrong actually began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005. SCA Promotions paid Armstrong $7.5 million in 2006. Evidence from that arbitration was used later against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was banned for life by the United States Anti-Doping Agency and stripped of his Tour titles in August 2012. Last February, SCA won a $10 million ruling against him after this case went back to the same arbitration panel that handled the 2005 dispute. The panel said Armstrong used perjury and other wrongful conduct to secure millions of dollars of benefits from SCA. One of the three neutral panelists dissented, noting that the parties entered into a final and binding settlement agreement the last time around. The dissenter apparently believes the majority's sanction is an unwarranted, unlawful reversal of a prior settlement agreement already made and effectuated. Armstrong's attorneys reportedly say the arbitration panel exceeded its authority with its recent ruling. According to news reports, Armstrong's attorneys claim the panel's issuance of sanctions violates well-established Texas public policy favoring settlements and arbitrations for efficient and final resolution of disputes. Court documents show Armstrong and Tailwind Sports, which owned the U.S. Postal Service team for which Armstrong raced, are seeking to vacate the award, insisting it “effectively eviscerated a fully negotiated and binding settlement agreement” reached between Armstrong and SCA Promotions in 2006. The arbitrators have said, “Perjury must never be profitable.” SCA Promotions is now asking a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and the former team owner so it may proceed to collect payment. Armstrong’s lawyers maintain the dispute settled voluntarily and finally years earlier. Interestingly, Armstrong previously offered to pay SCA despite the absence of any legal basis for the sanction, and SCA refused to accept. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See full stories here-- http://bit.ly/1F4qXrH and http://usat.ly/1Kqgxm2 and link to motion to vacate pleading here-- https://www.scribd.com/doc/264558280/Lance-Armstrong-Does-Not-Want-to-Pay-SCA-10-Million

Will Preemption Cause NFL Concussion Opt-outs to Opt-in Settlement?

The NFL maintains the appropriate forum for dealing with player injuries and concussions should be the Collective Bargaining Agreement grievance process, not litigation. For players that opted out of the NFL Concussion Settlement and are continuing their concussion litigation, a motion to dismiss based on preemption may be back on the table when just last week, a federal judge dismissed the prescription drug lawsuit filed by 1,300 former players (Richard Dent et al. v. NFL) on preemption grounds. In that case, the judge decided that the league addressed serious concerns in a serious way-- by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves. He went on to state that these benefits may not have been perfect, but they have been uniform across all clubs and not left to the vagaries of state common law. They are backed up by the enforcement power of the union itself and the players' right to enforce these benefits. This does not bode well for the former players that opted out of the settlement thousands of former players made with the National Football League (NFL) over concussion-related suits last summer. The league is reportedly paying $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. The settlement has been characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners reportedly wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The lawsuits accused the league of hiding known risks of concussions for decades to return players to games and protect its image. For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement was groundbreaking. For the lawyers whose clients objected to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the league to escape any determination of whether the league concealed the effects of head injuries from its players. Defending the deal, NFL and the players' attorneys insisted they wanted to help suffering players now, emphasizing difficulty in litigating causation between blows to the head and brain damage known as chronic traumatic encephalopathy (CTE) in these football concussion cases. See more here-- http://bit.ly/1x1uRxX and settlement info here-- https://www.nflconcussionsettlement.com

NCAA Settles Player Likeness Lawsuit

The NCAA has agreed to pay $20 million to settle a class-action lawsuit filed by players whose likenesses were used in EA games developed by the EA Tiburon studio, Electronic Arts Inc.'s Central Florida division. The suit over royalties for videogames produced here was filed in 2009 by Sam Keller. According to the NCAA, the settlement will award money to certain Division I men’s basketball and bowl football student-athletes who attended certain institutions during the years the games were sold. “With the games no longer in production and the plaintiffs settling their claims with EA and the Collegiate Licensing Company, the NCAA viewed a settlement now as an appropriate opportunity to provide complete closure to the video game plaintiffs,” said NCAA Chief Legal Officer Donald Remy. The Keller lawsuit was scheduled to go to trial next year. Courts are expected to approve the agreement. EA Sports already settled a $40 million lawsuit with players and is no longer making its college football game. This news comes during E3, the Electronic Entertainment Expo, where EA is expected to announce its newest lineup of video games today. The NCAA hopes the settlement the will help it in the larger trial getting underway Monday, named for former UCLA star and lead plaintiff Ed O'Bannon. Reportedly, the settlement is historic in that the NCAA will cut a check to players for their on-field performance, though it maintains there is nothing illegal in prohibiting college athletes from earning money off their play while in school. See stories here-- http://bit.ly/TAtl5i and http://on.wsj.com/1uLM7DV